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Is it still retaliation if your boss fired you for something you didn’t actually do? In Heffernan v. City of Paterson, New Jersey, the U.S. Supreme Court said yes—your boss’s mistake does not get him off the hook for the retaliation.

Officer Heffernan worked as a detective in the office of the Chief of Police, a supporter of the incumbent Mayor Torres. Officer Heffernan’s bedridden mother supported the mayoral challenger, Spagnola, and asked her son to pick up a Spagnola yard sign for her. While fulfilling his familial duties, Heffernan was spotted by some other officers who reported his visit to the Chief of Police. The next day, the Chief demoted Heffernan from detective to patrol officer to punish him for what the Chief thought was his “overt involvement” in the challenger’s political campaign. Heffernan filed suit claiming that the Chief had demoted him because he engaged in conduct that (on their mistaken view of the facts) constituted speech protected by the First Amendment.

The District Court focused on Officer Heffernan’s assertion that the Chief’s perception about his activity was wrong—holding that because Heffernan had not engaged in any First Amendment conduct there was no retaliation. The Third Circuit agreed and wrote that a claim could only be supported “by an employee’s actual, rather than perceived, exercise of constitutional rights.”

The Supreme Court started by noting that the Constitution prohibits a government employer from discharging or demoting an employee because he or she supports a particular political candidate. The Court assumed that the activities in which the Chief thought Officer Heffernan engaged are of a kind that the Chief cannot constitutionally prohibit or punish. The Court then turned to the fundamental question: does the law focus on the employee’s actual activity or does it focus on the supervisor’s motive insofar as that motive turns on what the supervisor believes the activity to be?

The Court concluded that the police force’s reason for demoting Officer Heffernan is what mattered. Importantly, the Court held:

“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”

The Court determined that this does not unfairly burden employers because it is still up to the employee to prove that the employer had an improper motive.

Although this case addressed First Amendment rights, which only arise in public employment, the rationale could potentially apply outside of the public arena. Additionally, in this heated political season, it is important to note that courts will scrutinize an employer’s actions that affect political activity. Supervisors need to be reminded that employees’ First Amendment rights are protected in this context.

Compare jurisdictions: Employment & Labor: North America

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